FILED

United States Court of Appeals

Tenth Circuit

February 25, 2009

UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court

TENTH CIRCUIT

LISA JANE GRAHAM,

Petitioner - Appellant,
v.

No. 08-3263
(D. Kansas)

RICHARD KOERNER, Warden,

Topeka Correctional Facility;
STEPHEN N. SIX, Attorney General
for the State of Kansas,

(D.C. No. 5:06-CV-03317-JAR)

Respondents - Appellees.

ORDER DENYING CERTIFICATE OF APPEALABILITY

Before HARTZ, McKAY, and OBRIEN, Circuit Judges.

A Kansas state-court jury convicted Lisa J. Graham on two counts of

attempted first-degree murder and three counts of aggravated assault of a lawenforcement officer. The aggravated-assault convictions were reversed on direct
appeal. After unsuccessfully pursuing state collateral remedies, Ms. Graham filed
an application for federal habeas relief under 28 U.S.C. 2254 in the United
States District Court for the District of Kansas on November 17, 2006. The
application raised 12 challenges to her attempted-murder convictions. The
district court ruled that she had procedurally defaulted eight of her claims and
that the remaining four lacked merit. Ms. Graham, appearing pro se, seeks a

certificate of appealability (COA) from us to challenge the district courts rulings.

See 28 U.S.C. 2253(c)(1)(A) (COA is necessary to appeal denial of relief in
2254 proceeding). Because a reasonable jurist could not debate the correctness
of the district courts decision, we deny her application for a COA and dismiss
the appeal.
I.

BACKGROUND
Ms. Grahams convictions arose from a confrontation with police in her

home. Knowing that authorities were looking for her to execute an arrest warrant,
Ms. Graham doused her house in gasoline and positioned a candle and bowl of
charcoal fluid behind her front door. She also strung a wire across the back door
to prevent it from opening. Two police officers knocked on the front door and
received no response. They then entered Ms. Grahams home through an
unlocked window, whereupon Ms. Graham retreated to the basement and lit
several roman candles (a firework that propels flaming balls) in an effort to burn
the house down. R. Vol. 2 (State Ct. Tr. Vol. III) at 388. It took the officers
one to two minutes to exit the premises. With fire spreading through the house,
one of the officers reentered to pull Ms. Graham out alive. As the officer rushed
towards her, she brandished a firearm, which discharged as she was tackled.
Neither the officer nor Ms. Graham was struck by the bullet.

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II.

DISCUSSION
In her 2254 application Ms. Graham raised three claims that she had

pursued on direct appeal in state courtnamely, that (1) her attempted-murder

conviction rested on insufficient evidence of guilt; (2) she was charged with
multiplicitous counts; and (3) the prosecutor made untrue and inflammatory
statements in his closing argument. She also complained that her state-court
motion for collateral relief had been summarily denied. The district court
rejected these claims on the merits. In addition, the court ruled that eight claims
in Ms. Grahams 2254 application had been procedurally defaulted because they
had not been raised in state court. Construed liberally, Ms. Grahams request for
a COA challenges each of the district courts rulings. See United States v.
Nelson, 465 F.3d 1145, 1148 (10th Cir. 2006) (pro se filings must be liberally
construed).
A COA will issue only if the applicant has made a substantial showing of
the denial of a constitutional right. 28 U.S.C. 2253(c)(2). This standard
requires a demonstration that . . . includes showing that reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473,
484 (2000) (internal quotation marks omitted). In other words, an applicant must
show that the district courts resolution of the constitutional claim was either
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debatable or wrong. Id. If the application was denied on procedural grounds,

the applicant faces a double hurdle. Not only must the applicant make a
substantial showing of the denial of a constitutional right, but she must also show
that jurists of reason would find it debatable . . . whether the district court was
correct in its procedural ruling. Id. Where a plain procedural bar is present and
the district court is correct to invoke it to dispose of a case, a reasonable jurist
could not conclude either that the district court erred in dismissing the petition or
that the petitioner should be allowed to proceed further. Id.
Also pertinent to our standard of review, the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA) provides that when a claim has been
adjudicated on the merits in state court, a federal court will grant habeas relief
only when the applicant establishes that the state-court decision was contrary to,
or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States, or was based on an
unreasonable determination of the facts in light of the evidence presented in the
State court proceeding. 28 U.S.C. 2254(d)(1), (2). As we have explained:
Under the contrary to clause, we grant relief only if the state court
arrives at a conclusion opposite to that reached by the Supreme Court
on a question of law or if the state court decides a case differently
than the [Supreme Court] has on a set of materially indistinguishable
facts. Under the unreasonable application clause, relief is provided
only if the state court identifies the correct governing legal principle
from the Supreme Court's decisions but unreasonably applies that
principle to the facts of the prisoner's case. Thus we may not issue a
habeas writ simply because we conclude in our independent judgment
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that the relevant state-court decision applied clearly established

federal law erroneously or incorrectly. Rather, that application must
also be unreasonable.
Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004) (brackets, citations, and
internal quotation marks omitted). Therefore, for those of Ms. Grahams claims
that were adjudicated on the merits in state court, AEDPA's deferential treatment
of state court decisions must be incorporated into our consideration of [her]
request for COA. Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004).
A.

Sufficiency of the Evidence

Ms. Graham argues that the state adduced insufficient evidence of intent to
convict her of attempted first-degree murder. In assessing such an argument, a
court must defer to the fact-finding role of the jury. Thus, evidence of guilt is
sufficient if after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319
(1979). When a habeas applicants insufficient-evidence claim has been
addressed in state court, 2254(d) requires an additional layer of deference. See
Diestel v. Hines, 506 F.3d 1249, 1267 (10th Cir. 2007). Habeas relief may not be
granted unless the state courts application of the Jackson standard was
objectively unreasonable. See id.
The Kansas Supreme Court ruled on direct appeal that a rational juror could
have found that Ms. Graham coaxed police officers into her gasoline-soaked
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house in order to murder them and end her own life. State v. Graham, 83 P.3d
143, 152 (Kan. 2004). This was not an unreasonable application of Jackson.
Ms. Graham knew that police officers were looking for her. She poured gasoline
throughout her house while placing a wire across her back door and an incendiary
device behind the front door. She nevertheless left a window unlocked. When
two police officers entered through that window she attempted to burn the house
down. R. Vol. 2 (State Ct. Tr. Vol. III) at 388. And, perhaps most
incriminating, a fire inspector testified at trial that the fire originated under the
window in which the officers had entered. Viewing this evidence in the light
most favorable to the government, a rational juror could conclude that
Ms. Graham attempted to kill the officers who entered her home by trapping them
inside as it burned. At the least, the Kansas Supreme Court was not objectively
unreasonable in reaching that conclusion. See Diestel, 506 F.3d at 1267. No
reasonable jurist could debate the district courts decision regarding the
sufficiency of the evidence.
B.

Multiplicitous Charges

Ms. Graham alleges that the states complaint contained multiplicitous

chargesnamely, both aggravated assault and attempted murder for the same
conductin violation of the Double Jeopardy Clauses prohibition against

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multiple convictions for the same offense. 1 See United States v. Barrett, 496 F.3d
1079, 1095 (10th Cir. 2007) (multiplicitous charges are those that cover the same
criminal behavior (internal quotation marks omitted)). The district court
rejected this claim because Ms. Grahams convictions for aggravated assault were
overturned on appeal. The correctness of that rejection is not debatable. The
government may submit multiplicitous charges to the jury, United States v.
Nickl, 427 F.3d 1286, 1301 (10th Cir. 2005), so long as multiple convictions on
the charges are not permitted to stand, see id. Consequently, we need not address
whether the charges against Ms. Graham were, in fact, multiplicitous.
C.

Prosecutorial Misconduct

Ms. Graham contends that the prosecutors closing argument misstated the
evidence against her and improperly impugned her credibility. To prevail on a
claim of prosecutorial misconduct, a defendant must establish that the
prosecutions conduct or remarks so infected the trial with unfairness as to make
the resulting conviction a denial of due process. Hamilton v. Mullin, 436 F.3d
1181, 1187 (10th Cir. 2006) (internal quotation marks omitted). The Kansas
Supreme Court ruled that Mr. Graham was not entitled to relief on these
contentions and the district court agreed. No reasonable jurist could debate the
district courts decision.
1

Ms. Graham raised a related collateral-estoppel argument in her habeas

application but she does not challenge the district courts rejection of that
argument in her request for a COA or her brief to this court.
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D.

Summary Denial of Collateral Relief

Ms. Graham contends that the state courts improperly acted summarily in
denying her motion for collateral relief. As the federal district court ruled,
however, such a claim does not state a ground for habeas relief. See Sellers v.
Ward, 135 F.3d 1333, 1339 (10th Cir. 1998) (habeas relief must be founded on an
attack on the judgment which provides the basis for . . . incarceration, not an
attack on a proceeding collateral to that incarceration).
E.

Procedural Defaults

Ms. Graham concedes that her habeas application raised eight claims that
she failed to pursue on direct appeal. 2 The district court concluded that these
claims of trial error were procedurally defaulted. In Kansas the failure to
2

The district court accurately summarized these claims as follows:

(1) the courts reply to the jury question of the definition of

premeditation prejudiced the outcome of the case and deprived her of
a fair trial; (2) the exclusion of evidence by the court permitted
malicious prosecution; (3) the court violated her rights when it failed
to present her theory of suicide in a lesser charge to the jury; (4) the
State committed prosecutorial misconduct by knowingly presenting
false testimony or implied findings to show that her claim had no
merit; (5) the court sequestered her from conferring with defense
counsel after calling a recess; (6) a potential juror raised a racial
issue and the courts response gave the impression of racial
partiality; (7) the trial court erred in failing to request a change in
venue; (8) the Kansas doctrine for attempted murder diminishes the
States burden of proof and was not used in her case with the
legislative intent.
Graham v. Koerner, No. 06-3317, 2008 WL 4186874, at * 3 (D. Kan. Aug. 5,
2008).
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challenge a trial error on direct appeal results in a procedural default unless (1)
the error is one affecting constitutional rights and (2) exceptional
circumstances excus[e] the failure to appeal on the issue. Kan. Sup. Ct.
R. 183(c). To establish exceptional circumstances, a defendant must show (1)
ineffective assistance of trial counsel in failing to object regarding an issue; (2)
ineffective assistance of direct appeal counsel in failing to raise the issue; or (3)
newly discovered evidence or an unforeseeable change in circumstances or
constitutional law unknown to counsel and the movant at the time of trial and
direct appeal. Bledsoe v. State, 150 P.3d 868, 877 (Kan. 2007).
It is not clear from Ms. Grahams submissions how each of the eight claims
she first raised in her 2254 application involved a constitutional right. In any
event, the two excuses she has proffered for not raising issues on direct appeal are
not extraordinary. One is that her counsel was not aware of certain facts,
although she was. But newly discovered evidence excuses the failure to appeal an
issue only if it was unknown to counsel and the movant. Id. (emphasis added).
The other proffered excuse is that she did not learn of one incident of
prosecutorial misconduct until following her conviction. Aplt. Br. at 20. But
she does not allege, as she must, that she was unaware of this evidence at the time
of her direct appeal. See Bledsoe, 150 P.3d at 877 (must be unaware of evidence
at the time of trial and direct appeal).

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Ms. Graham could overcome the state procedural bar by showing cause
and prejudice or a fundamental miscarriage of justice. Cannon v. Mullin, 383
F.3d 1152, 1172 (10th Cir. 2004) (internal quotation marks omitted). But she has
made no showing beyond the above arguments regarding state procedural bar. No
reasonable jurist could dispute the district courts ruling on procedural bar.
F.

Additional Issues

In her request for a COA from this court Ms. Graham raises several issues
not raised in her habeas application. None warrants relief.
First, Ms. Graham argues that the district court unreasonably delayed
adjudication of her habeas application. This is not a cognizable habeas claim.
Although a delay in collateral proceedings can work a denial of due process,
requiring action by this court, such delay does not give rise to an independent
due process claim that would justify granting a defendant habeas relief. United
States v. Dago, 441 F.3d 1238, 1248 (10th Cir. 2006) (internal quotation marks
omitted).
Second, Ms. Graham argues that the district court improperly denied her
request to be released pending adjudication of her habeas application. But to be
entitled to this extraordinary remedy, an applicant must demonstrate exceptional
circumstances or a clear case on the merits of the habeas petition. Pfaff v.
Wells, 648 F.2d 689, 693 (10th Cir. 1981). As the district court found,
Ms. Graham failed to establish either prerequisite.
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Third, Ms. Graham contends that the district court was biased against her.
Ms. Graham has not provided factual allegations to substantiate this claim. Her
view appears to be that the district court was biased because it denied her relief.
But it is well established that adverse rulings cannot in themselves support a
charge of judicial bias. Nickl, 427 F.3d at 1298 (internal quotation marks
omitted).
Fourth, Ms. Graham seeks habeas relief on the ground that upon release she
will be subject to registration requirements enacted after her conviction, in
violation of the Ex Post Facto Clause. But this claim for relief was not included
in her 2254 application. We do not review claims for relief not raised below.
See Parker v. Scott, 394 F.3d 1302, 131920 (10th Cir. 2005).
Fifth, Ms. Graham contends that on direct appeal the Kansas Supreme
Court improperly relied on State v. Bryant, 38 P.3d 661, 666 (Kan. 2002). But
errors of state law do not warrant federal habeas relief. See Bullock v. Carver,
297 F.3d 1036, 1055 (10th Cir. 2002).
III.

CONCLUSION
Ms. Graham has not made a substantial showing that her constitutional

rights were denied. 28 U.S.C. 2253(c)(2). We therefore DENY her application

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for a COA and DISMISS this appeal.

ENTERED FOR THE COURT

Harris L Hartz
Circuit Judge

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